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United States v. Delamotte

decided: November 10, 1970.


Lumbard, Chief Judge, and Moore and Smith, Circuit Judges.

Author: Smith

J. JOSEPH SMITH, Circuit Judge:

This is an appeal from conviction of kidnapping and interstate transportation of a stolen motor vehicle, in violation of 18 U.S.C. ยงยง 1201(a) and 2312, on trial to the jury in the United States District Court for the District of Connecticut, William H. Timbers, Chief Judge, raising questions of the scope of the Lindbergh Act and trial error. We find no error and affirm the judgment.

On September 2, 1966 appellant and two accomplices, Charles Jackson*fn1 and John Walsh, traveled from New Jersey to the Schick Safety Razor Company plant in Milford, Connecticut for the purpose of hijacking a truck which was transporting a cargo of razor blades from the Milford plant to West Haven. The three men followed the truck as it left the plant. A short distance down the road, when the truck stopped at a traffic light or stop sign, Jackson left the car and entered the cab of the truck from the passenger side, and while pointing a revolver at the driver, he instructed him to pull off the road and stop. Jackson then ordered the driver to get out and walk back to the defendant's car which had pulled up behind the truck. At the same time, appellant left the car and entered the cab of the truck. The driver testified that he did not see appellant at any time. Jackson and Walsh then took the driver from Milford to a wooded area near Alpine, New Jersey where they tied him to a tree. After they had left, the driver quickly was able to free himself and reported the incident to a Hackensack, New Jersey police officer. Appellant was said to have driven the truck away and disposed of the cargo. The empty truck was recovered several days later on a street in Queens. Jackson, Walsh and the appellant met later in the afternoon of the same day in the garage in Hoboken from which they had set out that morning.

There were two eyewitnesses to the crime, Walter Valites who had been driving down the same street, and Leslie Buswell whose office was directly across the street from the spot where the truck pulled over to the side of the road. Valites testified that he had seen a Negro male running up to the truck as it was stopped at the light and had also noticed two men in the car. Buswell saw two men get out of the truck and walk back to the car, and at the same time he saw one man walk from the car to the truck and then drive it away. Neither witness was able to identify the appellant as one of the persons involved. The truck driver did identify both Walsh and Jackson as the men who accompanied him to New Jersey, but he did not identify appellant.

The only evidence implicating appellant was that of Jackson who appeared as a witness for the government after he had been convicted in a jury trial of the same crimes and sentenced to 25 years on the kidnapping count and 5 years on the Dyer Act count. The issues raised in the appeal center around Jackson's testimony. The appellant denies that he participated in the crime in any way.

The first point raised by appellant is that Judge Timbers failed fairly and accurately to summarize the evidence for the jury in that he did not mention the fact that neither of the eyewitnesses was able to identify the appellant. Appellant further argues that since the witness Valites positively stated that DeLaMotte was not the man he had seen walk from the car to the truck, it was essential that this be included in the court's summation. The record on whether Valites was positive on this point is somewhat unclear.*fn2 We cannot say that the judge was bound to agree with appellant's interpretation or single out this testimony for inclusion in his summary.

This court recently reiterated the applicable standards to be applied by the trial judge in summarizing the evidence in United States v. Tourine, 428 F.2d 865 (2d Cir. July 29, 1970).

The trial judge in a federal court may summarize and comment upon the evidence and inferences to be drawn therefrom, in his discretion. This does not mean that he must include every scrap of evidence as if the jury were dependent upon the court's summation alone as the basis for its deliberations. * * * The purpose of such summation and comment is to assist the jury in winnowing out the truth from the mass of evidence, much of it conflicting, and perhaps placed out of focus by different claims concerning its meaning and interpretation by the arguments of the parties. So long as the trial judge does not by one means or another try to impose his own opinions and conclusions as to the facts on the jury and does not act as an advocate in advancing factual findings of his own, he may in his discretion decide what evidence he will comment upon. His fairness in doing so must be judged in the context of the whole trial record, particularly the evidence and the arguments of the parties. [at 869.]

Judge Timbers reminded the jurors at least 13 times throughout the proceedings that they were the finders of fact who must exercise their own judgment and not take what the court had said without further deliberation of their own. The court's failure to include mention of the eyewitnesses' statements which were at best equivocal was not prejudicial under the above standard.

The second point raised by appellant is that although the transportation of the truck driver from Connecticut to New Jersey literally falls within the requirements of the kidnapping statute, it was really an integral part of another crime (i.e., the hijacking), and that in light of the legislative history of the so-called Lindbergh law, this court should undertake to limit its application in situations such as the present case. Appellant relies on some general observations on the genesis of the Act in Chatwin v. United States, 326 U.S. 455, 66 S. Ct. 233, 90 L. Ed. 198 (1952).

This statute was drawn in 1932 against a background of organized violence. * * * Kidnapping by that time had become an epidemic in the United States. Ruthless criminal bands utilized every known legal and scientific means to achieve their aims and to protect themselves. * * * Victims were selected from among the wealthy with great care and study. Details of the seizures and detentions were fully and meticulously worked out in advance. Ransom was the usual motive. * * * 326 U.S. at 462-463, 66 S. Ct. at 236-237.

Otherwise, however, we have found no federal authority to support appellant's contention on this point. There are some New York and California decisions interpreting similar state statutes which have attempted to set such limitations based on those courts' reading of legislative history. The most notable of these is People v. Levy, 15 N.Y.2d 159, 256 N.Y.S.2d 793, 204 N.E.2d 842 (1965), where the New York Court of Appeals commented:

It is unlikely that these restraints (occurring for example in robbery), sometimes accompanied by asportation, which are incidents to other crimes and have long been treated as integral parts of other crimes, were intended by the Legislature in framing its broad definition of kidnapping to constitute a separate crime of kidnapping, even though kidnapping might ...

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